2004 Ohio 5660 | Ohio Ct. App. | 2004
{¶ 2} On June 14, 1999, the Franklin County Grand Jury indicted defendant on 33 counts for downloading onto his computer sexually explicit photographs depicting nude minors, e-mailing sexually explicit photographs to female minors and enticing female minors to meet him for sex for hire. After a jury trial, defendant was convicted of one count of compelling prostitution, in violation of R.C.
{¶ 3} On appeal, defendant challenged the validity of each of his convictions, his sentence, and his classification as a sexual predator. In our September 14, 2000 decision, this court reversed defendant's convictions for compelling prostitution and pandering obscenity involving a minor, but upheld defendant's convictions for disseminating matter harmful to juveniles and illegal use of a minor in a nudity-oriented material or performance. Further, we remanded the matter to the trial court for resentencing and a new sexual predator hearing. State v. Maxwell (Sept. 14, 2000), Franklin App. No. 99AP-1177 ("Maxwell I").
{¶ 4} With regard to the compelling prostitution conviction, we held that reversal was necessary because the state violated defendant's right to a speedy trial when it failed to bring him to trial within 270 days after his arrest. With regard to the convictions for pandering obscenity involving a minor, we held that in order to prove those offenses, the state was required to show that defendant acted recklessly when he brought into Ohio (i.e., downloaded onto his computer) obscene photographs depicting minors. Because we found that the state failed to present any evidence that defendant knew downloading the photographs would result in the photographs being brought into Ohio, we reversed defendant's convictions for pandering obscenity involving a minor.
{¶ 5} The state then sought a discretionary appeal before the Supreme Court of Ohio. While the Supreme Court was considering whether to allow the appeal, the Supreme Court stayed the execution of our judgment in Maxwell I pending the resolution of the appeal. State v. Maxwell (Oct. 16, 2000),
{¶ 6} On February 7, 2001, the Supreme Court allowed the state's appeal on only one proposition of law — that R.C.
{¶ 7} The May 15, 2002 judgment entry that implemented the Supreme Court's decision stated:
This cause, here on appeal from the Court of Appeals for Franklin County, was considered in the manner prescribed by law. On consideration thereof, the judgment of the court of appeals is reversed consistent with the opinion rendered herein.
It is further ordered * * * that a mandate be sent to the Court of Common Pleas for Franklin County to carry this judgment into execution; and that a copy of this entry be certified to the Clerk of the Court of Appeals for Franklin County for entry.
{¶ 8} On October 10, 2002, defendant appeared before the trial court for resentencing. Upon reviewing Maxwell I and the Supreme Court's decision, the trial court concluded that it was required to re-sentence defendant for his convictions for disseminating matter harmful to juveniles, pandering obscenity involving a minor and illegal use of a minor in a nudity-oriented material or performance. After deciding that it would not revisit its previous sexual predator finding, the trial court re-sentenced defendant to a total of eight years' imprisonment. The October 23, 2002 judgment entry reflected this sentence and defendant's classification as a sexual predator.
{¶ 9} Seven days after the trial court issued its October 23, 2002 judgment entry, this court issued a judgment entry vacatingMaxwell I and affirming the trial court's September 20, 1999 judgment "consistent with the opinion of the Supreme Court."
{¶ 10} On appeal from the trial court's October 23, 2002 judgment entry, defendant assigns the following errors:
[1.] Pandering Obscecity [sic] involving a minor (Ohio Revised Code Section
[2.] Illegal use of a minor in a nudity oriented material or performance, contrary to Ohio Revised Code Section
[3.] The trial court erred to the substantial prejudice of appellant in finding him to be a sexual predator, contrary to the statutory mandate.
[4.] The court erred to the substantial prejudice of appellant in finding him to be a sexual predator, contrary to the statutory mandate.
[5.] The trial court erred in sentencing appellant to consecutive terms for multiple counts.
{¶ 11} In its cross-appeal, the state assigns the following errors:
[1.] The trial court lacked jurisdiction to hold a "re-sentencing hearing."
[2.] The trial court lacked authority to reduce appellant/crossappellee's sentence.
{¶ 12} Because the state's cross-assignments of error are potentially determinative of this matter, we will address them first. By both its first and second cross-assignments of error, the state argues that the trial court did not have the authority to re-sentence defendant, much less to re-sentence him to a reduced prison term. We disagree.
{¶ 13} A reviewing court's remand effectuates a revival of a trial court's authority to conduct further proceedings in a case.State v. Thrower (1993),
{¶ 14} In the case at bar, the Supreme Court's May 15, 2002 judgment entry ordering the trial court to "carry this judgment into execution" revived the trial court's authority over this matter. However, the scope of the trial court's authority was limited to settling only what was remanded. In order to determine what actions were required of it on remand, the trial court had to look to both the Supreme Court's decision and Maxwell I. The trial court's duty upon remand included following this court's mandate in Maxwell I because: (1) the Supreme Court's decision did not vitiate the entirety of the mandate we imposed inMaxwell I; and (2) the issuance of the Supreme Court's decision lifted the stay the Supreme Court had earlier imposed upon the execution of Maxwell I. Consequently, the trial court was required to implement Maxwell I, as modified by the Supreme Court's decision.
{¶ 15} As we stated above, although the Supreme Court reversed the portion of Maxwell I that reversed defendant's convictions for pandering obscenity involving a minor, it left the remainder of our judgment intact. Thus, pursuant to our mandate in Maxwell I, the trial court's authority on remand included the authority to dismiss defendant's conviction on compelling prostitution and to re-sentence defendant for the remaining convictions. Accordingly, the trial court was correct to do both.
{¶ 16} Further, we note that Maxwell I did not limit the trial court's authority to resentence defendant. Therefore, the trial court had the authority to sentence defendant to a lesser term of incarceration than previously sentenced, as long as that term remained within the statutory limits. See State v. Thomas
(1992),
{¶ 17} The state, however, argues that the trial court had no authority to resentence defendant because this court issued a judgment entry on October 30, 2002, vacating Maxwell I. Apparently, we issued this judgment entry under the erroneous belief that the Supreme Court's decision reversed Maxwell I in its entirety. Regardless, at the time the trial court re-sentenced defendant — in a judgment entry issued October 23, 2002 — Maxwell I was still in effect and invested the trial court with the authority to resentence defendant.
{¶ 18} Accordingly, we overrule both of the state's cross-assignments of error.
{¶ 19} By defendant's first and second assignments of error, he challenges the constitutionality of R.C.
{¶ 20} In the case at bar, defendant did not contest the constitutionality of either R.C.
{¶ 21} Because defendant's third and fourth assignments of error are virtually identical, we will address them together. By these assignments of error, defendant argues that the trial court erred in classifying him as a sexual predator because none of his surviving convictions constitute "sexual oriented offenses." We agree.
{¶ 22} To earn the designation of sexual predator, "the defendant must have been convicted of or pled guilty to committing a sexually oriented offense and must be `likely to engage in the future in one or more sexually oriented offenses.'"State v. Eppinger (2001),
{¶ 23} In the case at bar, defendant was originally convicted of compelling the prostitution of a 13-year-old minor female in violation of R.C.
{¶ 24} The state, however, argues that res judicata bars defendant's objection to his sexual predator classification because defendant did not raise this objection during his first sentencing hearing and the original appeal. We find this argument illogical. Defendant could not have asserted this objection in his first appeal because the circumstances creating the problem did not arise until we decided Maxwell I, which reversed the compelling prostitution conviction. Further, defendant did raise this argument before the trial court during the re-sentencing hearing. Accordingly, as defendant timely asserted this argument, it is not barred by res judicata.
{¶ 25} Accordingly, we sustain defendant's third and fourth assignments of error.
{¶ 26} By his fifth assignment of error, defendant argues that the trial court did not make the necessary findings to sentence him to consecutive sentences. We agree.
{¶ 27} An appellate court will not disturb a trial court's sentencing decision unless there is clear and convincing evidence that either the record does not support the sentence or that the sentence is contrary to law. State v. Comer,
{¶ 28} When imposing consecutive sentences for multiple offenses, a trial court must make the findings required by R.C.
[T]he court must find that consecutive sentences are necessary to protect the public from future crime or to punish the offender. Second, the court must find that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public. Third, the court must find the existence of one of the enumerated circumstances in R.C.
Comer, supra (emphasis sic, citations omitted). Further, when making the findings mandated by R.C.
{¶ 29} Although a trial court is not required to utter any magic or talismanic words, the record must reflect that the court made the requisite findings. State v. Kellum, Franklin App. No. 03AP-711,
{¶ 30} Accordingly, we sustain defendant's fifth assignment of error.
{¶ 31} For the foregoing reasons, defendant's first and second assignments of error are overruled, and his third, fourth, and fifth assignments of error are sustained. The state's two cross-assignments of error are overruled. The Franklin County Court of Common Pleas' October 23, 2003 judgment entry is reversed and vacated in its entirety, and this case is remanded to that court so that it can re-sentence defendant on his convictions for five counts of disseminating matter harmful to juveniles, in violation of R.C.
Judgment reversed and cause remanded.
Brown and Sadler, JJ., concur.
